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Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States

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Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States City University of New York (CUNY) CUNY Academic Works Publications and Research John Jay College of Criminal Justice 2014 Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, The United Kingdom, and the United States Anissa Helie CUNY John Jay College Marie Ashe Suffolk University How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/jj_pubs/152 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] REALITIES OF RELIGIO-LEGALISM: RELIGIOUS COURTS AND WOMEN'S RIGHTS IN CANADA, THE UNITED KINGDOM, AND THE UNITED STATES Marie Ashe andAnissa Helie* ABSTRACT Religio-legalism - the enforcement of religious law by specifically- religious courts that are tolerated or endorsed by civil government - has long operated against women's interests in liberty and equality. In the 21' century, religious tribunals - Protestant, Catholic, Jewish, and Muslim - operate throughout the world. Almost all are male-dominated, patriarchal, and sex-discriminatory. Harms to women produced by Muslim or sharia courts have come into focus in recent years, but present realities of religio- legalism operating through Christian and Jewish - as well as Muslim - religious courts in Western nations have been under-examined This essay documents controversies concerning sharia-courts that have arisen in Canada and in the United Kingdom during the past decade and also looks at concurrent developments relating to sharia and to other-than-Muslim religious courts in the US. Religious courts - Christian, Jewish, and Muslim - have in common that they assert original or exclusive jurisdiction over certain matters. In calls for "official recognition" of sharia-courts,proponents have advanced a religious-equalityargument, claiming that denial of that status to Muslim tribunals would violate the governmental obligation to avoid discrimination among religions. At the same time, sharia-relatedcontroversy has raised sharply the question about the implicationsfor women's liberty and equality rights that areproduced by governmental accommodations of the religious- equality and religious-liberty interests asserted by all religious entities enjoying governmental recognition. While recognizing the legitimacy and weight of the complaint against inequitable treatment of religions, we argue here that whenever governmental action to "resolve" sharia-related conflict adopts the avoidance of discrimination among religions as its single goal and therefore expands its "official recognition" to include additional religious courts, it * Marie Ashe is Professor of Law at Suffolk University Law School, Boston. Anissa H61ie is Assistant Professor of History at John Jay College of Criminal Justice, New York City. Electronic copy available at: http://ssrn.com/abstract=2552945 140 University of California,Davis [Vol. 20:2 will have the effect of enlarging religions' power and at the same time exacerbating harms to women. Referencingfeminist writings that have documented the global spread of religious fundamentalisms from the 1990s to the present and that have exposed capitulations of liberalism to those fundamentalisms, we call for reconceptualization of the law-religion-women nexus. We urge recognition that governmental goals of equitable treatment of religions and protection of women's rights will together be served not by expansions of governmental engagements with religion, but by retrenchmentfrom religio-legalism.Thus, we urge, in policy and in law, clear prioritization of the protection of women's rights and concurrent retreatfrom the formal recognition of all religious courts and of civil-law enforcement of the orders of any such bodies. INTRODUCTION ....................................................... 141 I.THE ONTARIAN "SHARIA TRIBUNAL" CONTROVERSY (2003-2006)..........145 A. The Ontarian Arbitration Act of 1991 .................. 146 B. Religious Arbitration throughout Canada........ ........... 147 C. The Ontarian "Sharia Tribunal" Proposal and Controversy .... 149 D. Feminist Opposition, the Boyd Report, and Further Feminist Opposition ........................ ...... 155 E. The McGuinty "Ban" and Ontarian Legislation of 2006.........159 II.MUSLIM TRIBUNALS AND SHARIA COUNCILS INTHE UNITED KINGDOM (2008-2014) .................................... 161 A. Historical Background ............................. 162 B. Muslim Arbitration Tribunals and Sharia Councils.................170 1. Muslim Arbitration Tribunals: Operations and Effects for Women .......................... ........ 171 2. Sharia Councils: Operations and Effects for Women ....... 175 i. Operations of the Mediation Councils ...... ..... 176 ii. Effects for Women................. ........ 177 C. Arbitration and Mediation (Equality) Bill ........ ......... 181 III.REALITIES OF RELIGO-LEGALISM IN THE UNITED STATES .... ...... 185 A. The American Constitutional Law-Religion-Women Nexus (1990-Present) ........................................ 186 B. Operations of Christian Religious Courts in the US................190 C. The American "Anti-Sharia" Movement ....................... 192 D. Dangers of US International "Religious Engagement"...........197 IV.RESISTANCE TO RELIGIO-LEGALISM. ....................... ...... 199 A. Remembering Feminist Analyses of Fundamentalisms...........199 B. Rejecting Liberal and Fundamentalist Collusion.....................203 C. Reconceptualizing the Law-Religion-Women Nexus ............. 205 CONCLUSION .................................... ........ 208 Electronic copy available at: http://ssrn.com/abstract=2552945 2014] Realities ofReligio-Legalism 141 INTRODUCTION During the decades since 1990, religio-legalism - the enforcement of religious law by specifically-religious courts that are tolerated or endorsed by civil government - has become a prominent concern within the disciplines of political science and legal theory. Scholars in these areas have expressed enthusiasm for - or resistance to - the present reality and the possible future expansion of "legal pluralism."' And, during the last ten years, religio-legalism has emerged as a highly-divisive political issue in Canada, the United Kingdom (UK) and the United States (US). 2 In each of these three nations, recent controversy about religio-legalism has focused almost exclusively on its operation in the context of Muslim or sharia3 tribunals. Advocates of such tribunals have insisted that they be accommodated by civil governments as a matter of equity, given the reality that other-than-Muslim religious courts - Protestant, Catholic, and Jewish - have long enjoyed protection by civil governments in the liberal Western democracies. Sharia tribunals must be likewise protected, it has been urged, in order to avoid governmental discrimination among religions. Opponents of sharia tribunals have minimized the reality of inequity among religions and have formulated criticisms characterizing these specifically-Muslim entities as uniquely threatening to women's interests in equality and in liberty. Women who self-identify as feminists have occupied places on both sides of these issues. ' In this essay, our use of the terms "legal pluralism" and "religio-legal pluralism" neither to be confused with "religious pluralism" - designates the existence and operation of specifically-religious judicial entities (termed, variously, "courts," "tribunals," or "synods") within the contexts of Western liberal democracies. For a useful introduction to the concept, see generally William Twining, Normative and Legal Pluralism: A Global Perspective, 20 DUKE J. COMP. & INT'L L. 473 (2010). 2 In this essay, we address religio-legalism as it operates through the exercise of jurisdiction by specifically-religious courts. Religio-legalism can also operate when civil courts rely upon and apply religious law while cloaking the latter under the discourse of civil law. See generally Marie Ashe, Privacy and Prurience:An Essay on American Law, Religion, and Women, 51 AM. J. LEGAL HIsT. 461 (2011) (examining religio-legalism in 21st century U.S. Supreme Court decisions and in 17th century Bay Colony civil and ecclesiastical courts), available at http://ssrn.com/abstract-1935705. The usage of the term "sharia" has been criticized on the basis that it fails to communicate the diversity across Muslim jurisprudence (within specific schools of thought), and tends to present Muslim laws as constituting a homogeneous body. See infra note 117 and accompanying text. While aware of this criticism and supportive of it, we use the term here as it has been popularly and politically used in Canada, the UK and the US in recent years. Except when quoting from material that has adopted an alternative, we consistently use the spelling "sharia." 142 University of California,Davis [Vol. 20:2 Civil governmental recognitions of jurisdiction in specifically-religious courts may be the most extraordinary of the accommodations currently being provided to religious organizations. The toleration of judicial autonomy in such bodies in itself manifests a striking sharing of sovereignty. And the ceding to religious bodies of a central feature of governmental sovereignty - the judicial power - becomes particularly problematic when that power is utilized in order to enforce religious law that conflicts with fundamental principles of the civil law. It is largely uncontroverted that religious laws are
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